Cherry v. State

Ellington, Presiding Judge.

A jury found Anthony Cherry guilty of driving under the influence of alcohol, OCGA § 40-6-391 (a) (1). Following the denial of his motion for new trial, Cherry appeals, arguing that the trial court erred in admitting evidence of his refusal to submit to breath testing. He also contends that the trial court erred in admitting evidence of his horizontal gaze nystagmus ("HGN") test and in failing to exercise discretion in acting as the thirteenth juror. For reasons that follow, we find Cherry's arguments lack merit and affirm.

Viewed favorably to the verdict, the…